Parliament should reassert its sovereignty

Telegraph View: This is an arcane debate, but it goes to the heart of
where power lies.

The doctrine of parliamentary sovereignty set out by the Victorian constitutionalist A V Dicey has long been regarded as the most fundamental element of the British Constitution. It holds that the Crown in Parliament has unlimited legislative authority, and that the courts cannot override or set aside any of its statutes. In recent years, this concept has been challenged. Some senior judges argue that membership of the European Union, the devolution of power to Scotland, Wales and Northern Ireland and the encroachment of extraterritorial human rights laws have rendered this doctrine redundant. In their view, the Diceyean definition was itself a contrivance that did not accurately reflect the relationship between statutory and common law and is no longer defensible in the more complicated world we now inhabit.

This is an arcane debate, but it goes to the heart of where power lies – and it may today trigger the biggest Tory backbench revolt since the general election when MPs debate the committee stage of the European Union Bill. This measure is supposed to fulfil the promise made by David Cameron in opposition to prevent parliamentary sovereignty being further undermined by decisions taken in Brussels, Strasbourg or the UK courts. Critics, led by the redoubtable Bill Cash, say the measure does not achieve what was promised. They have tabled amendments which expressly reaffirm the sovereignty of Parliament and preclude the courts from invoking any common law principle to unravel a decision of Parliament.

It is odd that Mr Cameron has picked a fight over this matter, rather than just accept the amendments. He was unequivocal while campaigning for the Tory leadership and during the election in his support for repatriating powers to the UK and preventing any further leaching of sovereignty to the EU. Perhaps he senses there is political advantage to be had in taking on the Tory Eurosceptics, who have not forgiven him for abandoning his pledge of a referendum on the Lisbon Treaty.

Arguably, Parliament should no longer be able to do whatever it chooses, and should be subject to checks both from within and from outside. But we elect MPs and can hold them accountable for their decisions, whereas the same cannot be said about the judges or the European Commission. On balance, we see no reason why the Commons should not support these amendments, since they uphold what is conventionally believed to be the case. What Parliament must also do, however, is to show that it is worthy of being entrusted with absolute sovereignty, by passing fewer bad laws and holding the executive properly to account.